Excessive Use of Force?
The Taser X3, which is Taser's new multi-shot electronic control device. (Photo Dale Stockton) Is the use of a Taser considered excessive force?
FEATURED IN TACTICS AND WEAPONS
In the mid-afternoon hours of Jan. 31, 2007, an intoxicated 40-year-old female motorist crashed her 1999 Chevy Suburban into the rear end of another vehicle, both of which were traveling in the same direction on a street in San Clemente, Calif. According to the traffic collision report, the weather was clear, the roadway was dry and the daytime visibility was excellent. This was a routine, low-speed traffic accident that ultimately brought an Orange County deputy sheriff into a federal court almost three years later to answer for his discretionary use of a Taser electronic control device (ECD) in the arrest of the 5′ 8″ 130-lb, blue-eyed driver.
Often, it’s the routine police incidents that give rise to serious and expensive constitutional challenges. Initially, the traffic collision was classified as a “minor” accident with no serious injuries reported. Consequently, a community services officer (CSO) was dispatched to the scene rather than a sworn deputy sheriff. The CSO arrived on scene and determined that the responsible party was obviously intoxicated. Anticipating an arrest, the CSO radioed for a deputy sheriff to respond and handle the incident. 
Upon his arrival, the deputy independently determined that the female motorist was intoxicated and in violation of the DUI statutes. This conclusion was consistent with the earlier observations of the CSO and was further evidenced by a series of field sobriety tests (FST). Later, it would be determined that the subject had a rather significant history of alcohol and psychological issues and events, including prior DUI arrests and assault charges.
Based on his preliminary field investigation, his training, background and experience, the deputy placed the subject under arrest, handcuffing her in the typical cooperative behind-the-back fashion and then placed her in the secured rear seat of his sheriff’s vehicle. Then the deputy turned his attention to the essential paper work inherent to such an arrest. As the deputy settled back into the routine performance of his duties, the female subject began to act irrationally and soon morphed from being a diminutive lady into a screaming, kicking, obscene and violent prisoner. Her animation increased to the point where she was screaming and forcefully kicking at the interior structures of the police vehicle.
As expected, the deputy issued a series of verbal warnings to the subject, even twice warning her that a Taser device would be deployed if she continued to act in a violent and destructive manner. Unfortunately, the verbal warnings went unheeded, and the subject increased her physical attack on the police vehicle by attempting to kick out a glass window. She pulled at the handcuffs, causing her discomfort and producing superficial injuries. At some point, the deputy opened the rear door of the police vehicle and again issued a series of verbal warnings, including the repeated warning that a Taser device would be deployed if she didn’t regain control over herself. In response, the subject kicked violently at the deputy. Backing away to avoid injury, the deputy withdrew the Taser from his holster, pointed it at the handcuffed and assaultive subject, and issued a final verbal warning. Observing that the subject was still noncompliant and fully assaultive, the deputy fired the Taser directly at the subject and initiated a five-second energy cycle. Both probes made direct contact, one embedding in the subject’s center sternum and the other in the subject’s left breast. In this particular application, the Taser functioned exactly as designed and effectively forced the subject into a compliant state. As dictated by department policy, the deputy notified a patrol supervisor of the use-of-force incident and the tactical deployment of the Taser on a prisoner. The supervisor responded to the scene within a few minutes and took steps to ensure that the subject was properly processed and that her minor injuries were properly attended to, including the removal of the Taser barbs at a local hospital.
In preparing and presenting the plaintiff’s federal complaint, her attorney asserted that the use of the Taser was unreasonable, excessive and evidence of police brutality. In support of the complaint, the plaintiff retained a rather dubious expert witness, who was purportedly qualified to offer testimony concerning the Taser and its proper place in the police escalation of force.  This particular expert has actually experienced great difficulty establishing his expertise concerning Taser technology. It’s been observed that he lacks actual field experience or formal training certification with the Taser products.  This particular expert has been the subject of negative media accounts and court rulings concerning a series of inappropriate Taser experiments and attempted unqualified “expert” testimony.  One recurring theme offered by this expert is to elevate the use of a Taser to an imagined level of lethal force: “… the Taser weapon which causes extreme pain and incapacitation when it is used and has the potential to cause lethal injuries …” 
During the final week of August 2009, the question before the court and the jury was whether or not the use of the Taser to gain control over a noncompliant, apparently intoxicated and assaultive female prisoner who was handcuffed and in the rear seat of a police vehicle satisfied the objectively reasonable standard. Both attorneys offered closing arguments followed by the court issuing necessary legal instructions. The jury panel adjourned to the jury room to deliberate the evidence presented and the strict application of the law. In less than one hour, the jury returned to the courtroom with a defense verdict in favor of the arresting officer.
Is the use of a Taser considered excessive force? Like any other force option, it depends on various factors. If this question were proposed 20 years ago, many in the law enforcement community would express reservations since the technology was then beyond the common understanding and the actual field experience was nearly non-existent. Asking that same question in 1980 would have produced a different answer from police professionals than today. We know now that the technology has been greatly improved, the field dependability has been increased to remarkable levels, and the overall effectiveness has been nothing short of outstanding. We now also know that the anti-Taser coalition (e.g., Amnesty International, American Civil Liberties Union, and other networking groups) raised legitimate concerns and that, one by one, these hotly debated concerns have been resolved by scientific, medical, legal, scholarly and practical analysis. Some still insist that the Taser technology constitutes torture and continue to openly assert that the Taser technology “… has led to numerous deaths each year.” 
In a recent report, the National Institute of Justice (NIJ)  chose to define Taser technology as a conducted energy device (CED). In that report, a national panel of respected experts studying the relationship between CEDs and in custody deaths concluded, “Although exposure to CEDs is not risk-free, there is no conclusive medical evidence within the state of current research that indicates a high risk of serious injury or death from the direct effects of CED exposure.” Interestingly, some of the anti-Taser groups have found it necessary to reframe their rhetoric from the phrase “Taser deaths” to “Taser-related deaths.” Recently revised public statements by Amnesty International now claim, “Although most of the 334 deaths nationwide have been attributed to factors such as drug intoxication, medical examiners and coroners have concluded that Taser shocks caused or contributed to at least 50 of these deaths.” 
When used properly and intended to accomplish a legitimate police objective, the Taser doesn’t constitute excessive force, per se. It’s essentially a new tool with far more advantages than disadvantages. One police administrator made the primary point that a Taser device “… allows the officers to disable someone without having to put hands on them.”  Another stated, “The officer injuries are far less and, I think, statistically speaking, so goes the injuries to the noncompliant individuals.” 
History of Objections
Veteran law enforcement officers have long witnessed the unrelenting objections of those who sit in the bleachers to watch police activity at a safe distance. Some remember the good ol’ days when nightsticks were made from solid wood, flashlights were powered by heavy-duty D-cell batteries, and duty weapons held six rounds of .38 caliber ammunition. In those days, nights and early mornings, an open door or window usually meant a patrol officer or deputy would be called upon to enter the location with a revolver in one hand and a flashlight in the other and carefully conduct a room-by-room, door-by-door, floor-by-floor search for suspects. Soft-body armor and portable radio communications were yet to be invented. Oh yes, those were the good ol’ days.
The reality then was that such accepted and commonly practiced police procedures contributed to a great number of officer-involved shooting incidents. Some were certainly deliberate and necessary, while others were inadvertent or accidental. Many a full-length mirror and platoons of store mannequins suffered the consequence of such foolishness. On the other side of the equation, some of these startling confrontations produced sudden death for the participants, both for the involved officers and the suspects alike. The 1970s saw the introduction and the use of police service dogs capable of safe and efficient clearance of areas and building searches. With the advent of properly trained K-9 teams, area and building searches evolved into a series of tactical protocols that resulted in a great reduction of officer-suspect violence, injury and death. In spite of the obvious and overwhelming evidence to the contrary, there was a vigorous and purposeful assertion that the use of K-9 teams constituted deadly force. After much debate and countless civil lawsuits, the federal courts evaluated the use of police service dogs and determined that such tactics were objectively reasonable under certain circumstances.
There have been other areas of developmental evolution within the professional law enforcement field that have also been met with loud and sometimes hysterical objections. The design and deployment of so-called SWAT units to better manage high-risk incidents was strongly resisted under the theme that the civilian police were becoming militarized and bellicose. The fact that such specialized and highly trained professionals actually prevented violence and saved lives was grossly overlooked. The introduction of modern auto-loader firearms and specialized ammunition faced similar objections, even to the point that one public speaker contended that controlled expansion handgun ammunition amounted to the use of inhumane bullets, although the definition of a humane bullet remains a mystery.
Likewise, the development of OC pepper spray, less-lethal impact munitions and hobble-like restraint devices all caused uproar from the ignorant and ill-informed. Looking back on this repetitious pattern of resistance (and often staged theatrical outrage), one can observe that the law enforcement community was simply progressing towards the development of an effective means of overcoming resistance and gaining control of a non-compliant or assaultive suspect with a tactically astute, expeditious, dependable and non-lethal force option.
The term law enforcement reveals that force is a component of the legitimate law enforcement mission. The U.S. Supreme Court and the various state-based penal codes give clear authority to arresting officers to use objectively reasonable force given the facts and circumstances known to them at the time the force is used. Thus, when we consider Taser technology, we shouldn’t confuse apparent need and measured amount.
As with any force option, inappropriate use of Taser technology will bring enormous critical attention to the public discussion. The misuse of this technology can only restrict or reverse the progress seen to date. A very valuable and highly effective means of suspect control and officer safety can be soon lost by either actual or perceived misuse of Taser technology. Interestingly, much of the criticism offered to date seems more focused on the amount of force (or force level) that Taser technology represents and less focused on the apparent need to use force. This seems out of order in terms of professional teaching and training efforts.
Assessing the Apparent Need
Officers with access to Taser technology must make professional judgments as to when and under what circumstances a Taser device should be employed. Critics have already begun to craft proposals and restrictions based on incidents of perceived misuse. Department policies and training programs offer guidelines and insights to assist the individual officer in these considerations. The point to be addressed here is the officer’s pre-event or pre-deployment preparedness.
Are you prepared now? For comparison, when discussing the use of deadly force, it’s clearly understood that it’s inappropriate (and even unlawful) to shoot at a fleeing petty thief. So, the greater majority of trained law enforcement officers wouldn’t even consider shooting at a fleeing petty thief as being an appropriate force option. It’s this firm, intellectual resolve (i.e., to shoot or not to shoot) that must be also implanted in Taser training so that dynamic field decisions comport with the objectively reasonable standard of care and department policies.
Assessing the Amount
When Taser technology appeared on the landscape, it was to be expected that the second-guessers and litigation specialists would again sound their alarms. After all, the popular assessment was that the police were electrocuting suspects and causing deaths. This misinformation needs correction. A person actually killed by electrocution is typically dead in the instant. There’s no scientifically reliable or credible evidence to support the notion that a Taser device can or does deliver sufficient raw electrical energy to produce a sudden death by electrocution. Careful studies of subjects who died after a Taser application consistently demonstrate that the cause of death was attributable to some factor other than the Taser electronic control device. Typically, these rare deaths involve a drug-induced medical emergency, a psychotic-driven crisis or some other non-tactical factor over which the arresting officer has no control.
In spite of the overwhelming scientific evidence and medical findings, critics of the Taser technology continue to assert that the Taser represents deadly force. At the time of this writing, Taser opponents claim that approximately 300-plus persons have been killed by the police use of Taser electronic control devices. In a recent California civil litigation, the plaintiffs cited a Canadian study of 16 so-called Taser deaths occurring in British Columbia and the Yukon Territories since 2003.  This judicial review included the video recorded incident at the Vancouver International Airport in which a disruptive Polish construction worker died after multiple Taser applications by RCMP airport security officers. The flawed logic seems to be that such a death establishes that Taser electronic control devices can and do cause death in some subjects in some settings and therefore constitutes deadly force.
Does the use of a Taser ECD actually constitute deadly force?
To answer this question, we can only assume that the range of possible Taser ECD-related deaths reported in the U.S. and Canada is somewhere between one case, as in the Vancouver Airport incident, and 350 cases, as in the combined U.S. and Canada experiences. The first case is obviously a less significant and almost irrelevant statistic. However, the consolidated international total of 350 claimed fatalities seemingly presents a completely different issue, one worthy of serious considerations. Like so many statistical presentations, the devil is in the details. For example, whether the true and accurate number is closer to either extreme (one or 350), the data studied is exclusive to purported fatal applications and completely ignores the much greater number of successful, non-fatal Taser deployments. Equally nonsensical is the erroneous presumption that the sample deaths were factually caused by the Taser technology as opposed to the documented lethal amounts of life-threatening drugs and/or documented case histories of self-destructive psychotic behavior.
To better understand the statistical manipulations at play, two simple exercises follow:
1) Tens of thousands of aircraft of widely varying types take off and land safely without incident each day across the U.S. This fact goes either unreported on a regular basis or completely obliterated by the very rare occasion of an aircraft disaster. Hence, some of the population holds air travel as an exceptionally hazardous means of transportation. The perception overwhelms the reality.
2) If one were directed to collect and analyze all fatal traffic collisions involving automobiles built by Volvo, the data would certainly indicate that Volvo automobiles were inherently dangerous to operate. Of course, that perception ignores the reality that most Volvo automobiles deliver years of service without becoming involved in a fatal accident. The obvious flawed logic in this example is that the study was limited to the statistical anomalies and completely ignored the statistical realities.
Professional law enforcement clearly knows that in-custody deaths are so rare as to be a statistical anomaly. Taser-related deaths are even more rare. And in both categories, the actual cause of death is typically attributable to something other that the police procedures followed.
In the Canadian study, Judge Braidwood reached several significant findings that support the reasonableness of the police use of the Taser technology:
- Taser technology is effective in the great majority of deployments.
- Society is better served by the use of the Taser technology than without it.
- Rejection of the strenuously recommended “moratorium” and “additional research.”
- Recognition of the need for improved reporting procedures, training programs and standardized police policies.
- Some medical evidence suggests a potential for Taser-related deaths within a limited sub-category of the general population.
Essentially, the Canadian study re-affirmed what was already known. There’s no “one size fits all” or “silver bullet” solution for controlling violent resistors. One medical professional offered the following precise reality check: “No responsible person would ever say that any given control modality could never cause death.”  Simply put, there is no “never” in medicine.
Presently, the well-developed Taser technology offers an effective alternative to the more traditional force options, such as impact weapons and firearms. Actual in-the-street police experience demonstrates that Taser technology has saved lives of subjects who might have otherwise been shot had the Taser technology not been available on scene. Several independent studies throughout the U.S. indicate measurable and impressive reductions in injuries, deaths, use-of-force complaints—even lawsuits. As a collateral benefit, some otherwise non-compliant and assaultive suspects have even been deterred and intimidated and motivated to surrender without further incident by the mere display of the Taser.
Given proper training, adequate policy guidelines, effective supervision, sound tactical applications and competent report writing, the field deployment of the Taser technology can and does satisfy the objectively reasonable standard of care. While the medical debate will continue, so will the collection of data supporting the increased safety offered by this new, highly effective control device.
- 1. Dodi Eklund vs. County of Orange, et al (ref: USDC case: SACV08-00099 DOC)
- 2. Clark, Roger Alma of Santee, California; retired (1993) Los Angeles County Sheriff. In a recent USDC Rule 26 Declaration, Mr. Clark purported to have offered “expert” testimony on 335 occasions (ref: Prado vs. Siskiyou County; USDC case: 2:08-CV-0835-GEB-CMK)
- 3. Dodi Eklund vs. County of Orange, et al (ref: USDC case: SACV08-00099)
- 4. People vs. George William Engman (ref: San Bernardono CO SUP CRT case: MWV 104 208)
- 5. Dodi Eklund vs. County of Orange, et al (ref: USDC case: SACV08-00099)
- 6. Czech, Ted; Sunday News (02/21/09) published in the DAILY RECORD, Sunday News; and Amnesty International report “USA: Less Than Lethal” asserting 334 deaths (2001-2008) related to TASER applications.
- 7. NIJ SPECIAL REPORT, "Study of Deaths Following Electro Muscular Disruption" (Interim Report), June 2008
- 8. Amnesty International, USA: Safety of Tasers Questioned as Death Toll Hits 334, 12-16-2008
- 9. Snyder, John; Chief of Newberry Township Police.
- Whitman, Mark; Commissioner of York City Police.
- 10. “Braidwood Inquiry,” 546-page report ref: Superior Court in British Columbia. Dr. Christine Hall, MD; ref: testimony offered during the Braidwood Inquiry